Citation Nr: 0911870
Decision Date: 03/31/09 Archive Date: 04/08/09
DOCKET NO. 06-28 133A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Paul,
Minnesota
THE ISSUES
1. Entitlement to an effective date earlier than June 8,
2005 for a grant of service connection for pituitary
microadenoma.
2. Entitlement to an increased evaluation for pituitary
microadenoma, currently evaluated as 10 percent disabling, on
and after January 17, 2006.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
M. Katz, Associate Counsel
INTRODUCTION
The Veteran served on active duty from March 1992 to July
1992 and from August 2003 to June 2004.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2006 rating decision by the
Department of Veterans Affairs (VA) Regional Office in St.
Paul, Minnesota (RO).
FINDINGS OF FACT
1. The Veteran's claim for entitlement to service connection
for pituitary microadenoma was received by VA on November 14,
2005.
2. On March 9, 2005, the Veteran filed a claim for
entitlement to service connection for impotency, which is a
separate and distinct claim from the Veteran's November 14,
2005 claim for entitlement to service connection for
pituitary microadenoma.
3. The first objective medical evidence of pituitary
microadenoma was a September 2005 VA treatment record showing
elevated prolactin and a diagnosis suggesting pituitary
dysfunction due to prolactinoma.
4. Since January 17, 2006, the Veteran's pituitary
microadenoma was manifested by complaints of fatigue and
continuous treatment with bromocriptine; however, there is no
evidence of constipation, mental sluggishness, muscular
weakness, mental disturbance, weight gain, cold intolerance,
cardiovascular involvement, bradycardia, or sleepiness.
CONCLUSIONS OF LAW
1. The criteria for an effective date earlier than June 8,
2005 for the grant of service connection for pituitary
microadenoma have not been met. 38 U.S.C.A. §§ 5103A, 5107,
5110 (West 2002 & Supp. 2007); 38 C.F.R. § 3.400 (2008).
2. The criteria for a disability rating in excess of 10
percent for pituitary microadenoma on and after January 17,
2006 have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107
(West 2002); 38 C.F.R. § 4.119, Diagnostic Codes 7915-7903
(2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
With respect to the Veteran's claims, VA has met all
statutory and regulatory notice and duty to assist
provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§
3.102, 3.156(a), 3.159, 3.326 (2008). Prior to an initial
adjudication of the Veteran's claims, December 2005 and March
2006 letters satisfied the duty to notify provisions. 38
U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v.
Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v.
Nicholson, 19 Vet. App. 473, 486 (2006). The letters did
not, however, provide notice that there must be evidence of
the effect on employment and daily life, or notice of the
specific requirements of the diagnostic code to qualify for a
higher rating. Vazquez-Flores v. Peake, 22 Vet. App. 37, 43-
44 (2008). However, the Veteran was so notified in a March
2006 rating decision and an August 2006 statement of the
case, which were followed by a January 2007 supplemental
statement of the case which readjudicated the claim for an
increased evaluation. Prickett v. Nicholson, 20 Vet. App.
370, 376 (2006) (noting that a notice defect may be cured by
the issuance of a fully compliant notification letter
followed by a re-adjudication of the claim). Further, the
purpose behind the notice requirement has been satisfied
because the Veteran has been afforded a meaningful
opportunity to participate effectively in the processing of
his claims, to include the opportunity to present pertinent
evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir.
2007); Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir.
2007) (holding that although notice errors are presumed
prejudicial, reversal is not required if VA can demonstrate
that the error did not affect the essential fairness of the
adjudication).
The Veteran's service treatment records, VA medical records,
and VA examination reports have been obtained. 38 U.S.C.A. §
5103A; 38 C.F.R. § 3.159. There is no indication in the
record that additional evidence relevant to the issues
decided herein is available and not part of the claims file.
See Pelegrini v. Principi, 18 Vet. App. 112, 121-22 (2004).
As there is no indication that any failure on the part of VA
to provide additional notice or assistance reasonably affects
the outcome of this case, the Board finds that any such
failure is harmless. See Mayfield v. Nicholson, 20 Vet. App.
537, 542-43 (2006); see also Dingess/Hartman, 19 Vet. App. at
486.
I. Earlier Effective Date
The Veteran claims entitlement to an effective date earlier
than June 8, 2005 for a grant of service connection for
pituitary microadenoma. Specifically, he asserts that the
effective date of service connection should be June 16, 2004,
the day after his separation from active duty service. He
argues that the claim that he filed in March 2005 alleging
service connection for impotency was really a claim for
entitlement to service connection for pituitary microadenoma,
because it was the pathology underlying the impotency.
In a March 2006 rating decision, the RO granted entitlement
to service connection for pituitary microadenoma, and
assigned an effective date of November 14, 2005, the date of
the Veteran's claim. In April 2006, the Veteran filed a
notice of disagreement with regard to the effective date. In
an August 2006 rating decision and an August 2006 statement
of the case, the RO found that the Veteran's March 2005 claim
for entitlement to service connection for impotency was
really a claim for entitlement to service connection for
pituitary microadenoma because it was the pathology
underlying impotency. Accordingly, the RO assigned an
effective date of June 8, 2005, noting that this was the date
entitlement arose because the first medical symptoms of
record were low testosterone readings shown during the June
8, 2005 VA examination.
Under 38 C.F.R. § 3.400(b)(2)(i), the effective date for a
grant of compensation will be the day following separation
from active service or the date entitlement arose if a claim
is received within one year after separation from service.
Otherwise, the effective date is the date of receipt of the
claim or the date entitlement arose, whichever is later. 38
U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Unless specifically
provided, the effective date will be assigned on the basis of
the facts as found. 38 C.F.R. § 3.400(a). A "claim" is
defined in the VA regulations as "a formal or informal
communication in writing requesting a determination of
entitlement, or evidencing a belief in entitlement, to a
benefit." 38 C.F.R. § 3.1(p) (2008). An informal claim is
"[a]ny communication or action indicating intent to apply
for one or more benefits." 38 C.F.R. § 3.155(a) (2008).
A review of the Veteran's claims file reveals that, on March
9, 2005, he filed a claim for entitlement to service
connection for various disorders, including impotency. The
Veteran's service treatment records are negative for any
findings or complaints of impotency or erectile dysfunction.
A June 2005 VA examination report and VA treatment records
from that time reveal that results of laboratory testing
showed low testosterone levels. The diagnoses were low
testosterone with normal FSH and LH levels with vague
symptoms and erectile dysfunction possibly related to low
testosterone. By a September 2005 rating decision, the RO
denied entitlement to service connection for erectile
dysfunction.
VA treatment records from September 2005 reflect that
laboratory results showed an elevated prolactin level. In
addition to complaints of low libido and difficulty
maintaining erections, the Veteran noted episodes of impaired
vision and hearing loss. The diagnosis was symptoms of
hypogonadism such as low libido and poor erection. The VA
physician also suspected some pituitary dysfunction due to
prolactinoma which was consistent with the Veteran's elevated
prolactin level, headaches, and visual field deficit. With
regard to the Veteran's low testosterone level, the diagnosis
was hypogonadism. A September 2005 magnetic resonance
imaging scan (MRI) of the brain showed no evidence of
cerebral pathology and mucous retention cysts within the left
sphenoid locule and the right maxillary sinus. An October
2005 MRI of the brain revealed a focus of decreased
enhancement in the right lateral sella that may represent
microadenoma and mild sinus disease. A November 2005 VA
treatment record reveals diagnoses of symptoms that may be
attributable to hypogonadism as demonstrated by low free
testosterone and inappropriately low LH as well as
hyperprolactinoma, although mild. The treatment report also
notes that an MRI of the brain showed a six to eight
millimeter adenoma in the pituitary gland.
In Ephraim v. Brown, 82 F.3d 399, 401 (Fed. Cir. 1996), the
U.S. Court of Appeals for the Federal Circuit (Federal
Circuit) held that a newly diagnosed disorder, whether or not
medically related to a previously diagnosed disorder, cannot
be the same claim when it has not been previously considered.
See also Boggs v. Peake, 520 F.3d 1330 (2008). In the
present case, the Veteran clearly claimed entitlement to
service connection for impotency in his March 2005 claim.
Further, the Veteran has been separately service-connected
for erectile dysfunction. Later, after he was diagnosed with
pituitary microadenoma, the Veteran filed a claim for
compensation for this distinct disability. Although the
first competent medical evidence suggesting pituitary
dysfunction due to prolactinoma as a diagnosis was in
September 2005, the treatment record also indicates that
prolactinoma was consistent with the Veteran's elevated
prolactin level, headaches, and visual field deficits, which
were not reported by the Veteran prior to this time.
Moreover, although the June 2005 VA examination report notes
low testosterone levels, it does not reveal elevated
prolactin levels, which appear to be the basis for the
initial suggestion in September 2005 for prolactinoma. The
Board acknowledges the pro-claimant nature of the VA
disability compensation program; however, it also observes
that there is nothing to indicate that VA is to infer
disability claims when there is absolutely nothing to suggest
that the Veteran is claiming such disability. The Board is
satisfied that the Veteran's March 2005 claim form and the
evidence of record at that time reflect that he was claiming
entitlement to service connection for erectile dysfunction, a
separate and distinct disability which is separately service-
connected, when he filed a claim for impotency in March 2005.
The Board concludes that the first evidence of a claim,
informal or formal, for service connection for pituitary
microadenoma was the statement received at the RO on November
14, 2005. As noted above, when the Veteran's claim for
entitlement to service connection was not received within one
year after service discharge, the effective date of an award
is either the date of receipt of the claim, or date
entitlement arose, whichever is later. 38 C.F.R. § 3.400.
Thus, when the evidence in this case is considered under the
laws and regulations set forth above, the Board finds that an
effective date earlier than June 8, 2005 for the grant of
service connection for pituitary microadenoma is not
warranted.
Because there is no evidence that the Veteran filed or
intended to file a formal or informal claim for service
connection for pituitary microadenoma prior to November 14,
2005, and there is no objective medical evidence of that
disorder dated prior to the suggestion of pituitary
dysfunction due to prolactinoma in the September 2005 VA
treatment record, the preponderance of the evidence is
against his claim for an effective date prior to June 8,
2005. As such, the benefit of the doubt doctrine is
inapplicable, and the claim must be denied. See 38 C.F.R. §
5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
II. Increased Evaluation
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities
(Schedule), found in 38 C.F.R. Part 4 (2008). The Schedule
is primarily a guide in the evaluation of a disability
resulting from all types of diseases and injuries encountered
as a result of or incident to military service. The ratings
are intended to compensate, as far as can practicably be
determined, the average impairment of earning capacity
resulting from such diseases and injuries and their residual
conditions in civilian occupations. 38 U.S.C.A. § 1155; 38
C.F.R. § 4.1 (2008). In resolving this factual issue, the
Board may only consider the specific factors as are
enumerated in the applicable rating criteria. See Massey v.
Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2
Vet. App. 625, 628 (1992).
In considering the severity of a disability, it is essential
to trace the medical history of the Veteran. 38 C.F.R. §§
4.1, 4.2, 4.41 (2008). Consideration of the whole recorded
history is necessary so that a rating may accurately reflect
the elements of disability present. 38 C.F.R. § 4.2; Peyton
v. Derwinski, 1 Vet. App. 282 (1991). Although the
regulations do not give past medical reports precedence over
current findings, the Board is to consider the Veteran's
medical history in determining the applicability of a higher
rating for the entire period in which the appeal has been
pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where
entitlement to compensation has already been established and
an increase in the disability rating is at issue, the present
level of disability is of primary concern. Francisco v.
Brown, 7 Vet. App. 55 (1994). Staged ratings are, however,
appropriate when the factual findings show distinct time
periods in which a disability exhibits symptoms that warrant
different ratings. Hart v. Mansfield, 21 Vet. App. 505
(2007).
By a March 2006 rating decision, the RO granted service
connection for pituitary microadenoma, and assigned a 100
percent evaluation effective November 14, 2005, and a 10
percent evaluation effective January 17, 2006 under 38 C.F.R.
§ 4.119, Diagnostic Codes 7915-7903. In April 2006, the
Veteran filed a notice of disagreement with regard to the
assigned evaluation, and in September 2006, he perfected his
appeal. Initially, the Board observes that the March 2006
rating decision assigned a 100 percent evaluation for the
period of November 14, 2005 (later changed to June 8, 2005)
through January 16, 2006. As this constitutes a full grant
of the benefits sought, the issue of an increased initial
evaluation is not before the Board.
As previously mentioned, the Veteran's pituitary microadenoma
is currently evaluated as 10 percent disabling under
Diagnostic Code 7915-7903. Hyphenated diagnostic codes are
used when a rating under one diagnostic code requires use of
an additional diagnostic code to identify the basis for the
evaluation assigned. 38 C.F.R. § 4.27 (2008).
Under Diagnostic Code 7915, a benign neoplasm of any
specified part of the endocrine system is rated as residuals
of endocrine dysfunction. See 38 C.F.R. § 4.119, Diagnostic
Code 7915. Under 38 C.F.R. § 4.119, Diagnostic Code 7903,
hypothyroidism is evaluated as 10 percent disabling when
there is fatigability or continuous medication required for
control. A 30 percent evaluation is warranted when there is
fatigability, constipation, and mental sluggishness. A 60
percent evaluation is for application when there is evidence
of muscular weakness, mental disturbance, and weight gain. A
100 percent evaluation is warranted when there is cold
intolerance, muscle weakness, cardiovascular involvement,
mental disturbance (dementia, slowing of thought,
depression), bradycardia (less than 60 beats per minute), and
sleepiness. See 38 C.F.R. § 4.119, Diagnostic Code 7903.
A January 2006 VA urology note reveals the Veteran's
complaints of infertility and ejaculatory problems. The
Veteran was unable to produce a semen sample or have
ejaculation for three to four months. The treatment note
reveals that the Veteran was being treated for depression,
and that his medication for depression may have been
impacting his ejaculatory function. The treatment report
also notes that the Veteran had a history of prolactinoma and
was treated with bromocriptine for three months with
normalization of his pituitary hormone levels as well as his
testosterone level. Physical examination was normal, and the
diagnosis was male infertility related to prolactinoma and
ejaculatory dysfunction. The treatment report also indicates
that the Veteran's ejaculatory dysfunction was most likely
secondary to his depression and possible side effects of his
psychological medication. Another January 2006 VA treatment
record reveals the Veteran's complaints of sexual concerns
including delayed and absent ejaculation. The treatment
report also indicates that the Veteran's sexual concerns were
not attributable to prolactinoma, and that it was suspected
that his concerns were related to his selective serotonin
reuptake inhibitor medication. The Veteran reported that his
libido increased with testosterone treatment and
bromocriptine therapy, and that he was using Viagra with good
effect. He also indicated that he was not having morning
erections or ejaculation. The VA physician noted that it was
likely that psychological issues and medication were the
cause. The Veteran denied headaches and visual disturbances.
Physical examination was normal. The diagnoses were
microadenoma and secondary hypogonadism. The Veteran's VA
treatment records also show that he was treated with
bromocriptine since the diagnosis of his pituitary
microadenoma in November 2005.
A July 2006 VA treatment record notes that the Veteran's
prolactin level had trended down and that the Veteran had
difficulty with erectile dysfunction. The report reflects
that the Veteran's testosterone level was stable and in the
normal range since he began bromocriptine treatment, and that
his libido increased, enabling him to have spontaneous
erections and ejaculation with intercourse. The record also
indicate that the Veteran still needed to use Viagra prior to
intercourse. The Veteran denied headaches and visual
changes. The diagnoses were pituitary microadenoma and
erectile dysfunction.
In December 2006, the Veteran underwent a VA examination.
The Veteran complained of erectile dysfunction and
infertility. The VA examiner diagnosed prolactin secreting
pituitary microadenoma, currently treated by bromocriptine,
and concluded that the Veteran "has no current symptoms of
the pituitary microadenoma."
In May 2007, the Veteran underwent another VA examination.
The VA examination report notes that a March 2007 MRI of the
brain showed that the previously described microadenoma of
the pituitary gland was no longer visualized. The Veteran
complained of daily headaches within the occipital lobe of
the brain, several episodes of blackouts while driving,
impotency, erectile dysfunction, and constant tiredness and
fatigue. Physical examination revealed the Veteran to be
well nourished, oriented, and cooperative. He had normal
gait and posture. Evaluation of the head and neck showed
that the thyroid was not enlarged. Oropharyngeal examination
revealed normal mucosa without lesion or inflammation.
Tympanic examination was unremarkable. Both pupils were
equal, round, and reactive to light and accommodation. The
Veteran's lungs were clear to percussion an auscultation.
Examination of the heart reflected regular beats per minute
with no murmurs or gallops. The size of the heart was
normal. The abdomen was soft and flat with no tenderness, no
organomegaly, and no masses revealed. The external genetalia
were without any visual pathology. Both testicles were
within the scrotum and palpation of the testicles was
painless. The lower extremities were without cyanosis,
clubbing, or edema. There were no signs of skin degeneration
or nail infection. Peripheral pulses and reflexes were equal
and normal bilaterally. Babinski signs were negative
bilaterally. Evaluation of the Veteran's neurological status
showed cranial nerves II through XII grossly intact. The
diagnosis was pituitary adenoma (prolactinoma) with a March
2007 MRI showing that the previously described microadenoma
was no longer visualized. The VA examiner also noted that
the Veteran had male infertility, impotency, chronic
headache, constant tiredness and fatigue, and episodes of
blackouts while driving, which were related to his history of
pituitary adenoma.
The Board finds that an evaluation in excess of 10 percent on
and after January 17, 2006 for the Veteran's service-
connected pituitary microadenoma is not warranted. The
evidence of record reveals the Veteran's complaints of
infertility, ejaculatory problems, daily headaches,
blackouts, tiredness, and fatigue. However, a December 2006
VA examination report reveals that there were no current
symptoms of pituitary microadenoma. In addition, the May
2007 VA examination report reveals that a March 2007 MRI of
the Veteran's brain showed that the microadenoma of the
pituitary gland was no longer visualized. Although the
objective medical evidence of record shows that the Veteran
had fatigue and that he was treated with bromocriptine since
the diagnosis of pituitary microadenoma in November 2005,
there is no evidence of constipation, mental sluggishness,
muscular weakness, mental disturbance, weight gain, cold
intolerance, cardiovascular involvement, bradycardia, or
sleepiness. Accordingly, the Board finds that the Veteran's
current symptoms are adequately compensated by the assigned
10 percent rating. Thus, an increased evaluation is not
warranted for the Veteran's pituitary microadenoma under
Diagnostic Code 7903.
Consideration has also been given to the potential
application of other diagnostic codes. Schafrath v.
Derwinski, 1 Vet. App. 589 (1991). However, the Board finds
no basis upon which to assign a higher evaluation than that
currently assigned to the Veteran's pituitary microadenoma.
Specifically, the evidence of record fails to demonstrate any
hyperthyroidism, toxic or nontoxic adenoma of the thyroid
gland, hyperparathyroidism, hypoparathyroidism, Cushing's
syndrome, acromegaly, diabetes insipidus, Addison's disease,
pluriglandular syndrome, diabetes mellitus, malignant
neoplasm of the endocrine system, or C-cell hyperplasia of
the thyroid. 38 C.F.R. § 4.119, Diagnostic Codes 7900, 7901,
7902, 7904, 7905, 7907, 7908, 7909, 7911, 7912, 7913, 7914,
7919 (2008). Therefore, a review of the record, to include
the Veteran's subjective complaints and the objective medical
evidence, fails to reveal any additional functional
impairment associated with the Veteran's pituitary
microadenoma to warrant consideration of other diagnostic
codes.
The Board has also considered the issue of whether the
schedular evaluation is inadequate, thus requiring that the
RO refer the claim to the Chief Benefits Director or the
Director, Compensation and Pension Service, for consideration
of "an extra-schedular evaluation commensurate with the
average earning capacity impairment due exclusively to the
service-connected disability or disabilities." 38 C.F.R. §
3.321(b)(1) (2008). "The governing norm in these
exceptional cases is: A finding that the case presents such
an exceptional or unusual disability picture with such
related factors as marked interference with employment or
frequent periods of hospitalization as to render impractical
the application of the regular scheduler standards." Floyd
v. Brown, 9 Vet. App. 88 (1996). If the rating criteria
reasonably describe the Veteran's disability level and
symptomatology, then the Veteran's disability picture is
contemplated by the rating schedule, and the assigned
schedular evaluation is adequate, and no referral is
required. Thun v. Peake, 22 Vet. App. 111 (2008). In this
regard, the Board finds that the schedular evaluation in this
case is adequate. Higher ratings are provided for certain
manifestations of the service-connected pituitary
microadenoma, but the medical evidence reflects that those
manifestations are not present in this case. Id. Moreover,
the rating criteria reasonably describe the Veteran's
disability level of his service-connected pituitary
microadenoma. Accordingly, referral of this issue for
consideration of an extraschedular rating is not warranted.
After a careful review of the record, there is no evidence
that would warrant a rating in excess of 10 percent on and
after January 17, 2006 by this decision for the disability at
issue at any time during the period pertinent to this appeal.
38 U.S.C.A. 5110; see also Hart, 21 Vet. App. 505. In
reaching this decision the Board considered the doctrine of
reasonable doubt, however, as the preponderance of the
evidence is against the Veteran's claim, the doctrine is not
for application. Gilbert, 1 Vet. App. 49.
ORDER
An effective date prior to June 8, 2005 for the Veteran's
service-connected pituitary microadenoma is denied.
Entitlement to an evaluation in excess of 10 percent for
pituitary microadenoma on and after January 17, 2006 is
denied.
____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs